State ex Inf. Atty.-Gen. v. Ramona Kennel Club

• Decision Date: 03 July 1928
• Docket Number: No. 28639.,28639.
• Citation: 8 S.W.2d 1
• Parties: THE STATE EX INF. NORTH TODD GENTRY, Attorney-General, v. RAMONA KENNEL CLUB.
• Court: Missouri Supreme Court

8 S.W.2d 1

THE STATE EX INF. NORTH TODD GENTRY, Attorney-General, v. RAMONA KENNEL CLUB.

No. 28639.

Supreme Court of Missouri, Court en Banc.

July 3, 1928.

Quo Warranto.

OUSTER AWARDED.

North T. Gentry, Attorney-General, for relator.

(1) A demurrer to an information in quo warranto admits all facts well pleaded. State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34. (2) A corporation may be ousted of its franchises and privileges for a violation, through its officers or employees, of the criminal law. State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34. (3) Secs. 3535, 3536, R.S. 1919, forbid all wagers and participation in wagers upon contests of skill, speed or endurance of man or beast. Dogs come within the latter classification. 7 C.J. 1019. (4) In the state of pleadings, respondent is guilty of book-making, pool selling, recording and registering of bets upon the result of contests of skill, speed or endurance of dogs; and, as occupant of, and in charge of certain buildings, is guilty of knowingly permitting the same to be used for said purposes, all contrary to Secs. 3535, 3536, R.S. 1919. (5) Quo warranto is a civil action, and the sufficiency of the information is not tested by the strict rules of criminal actions, but by the rules of common-law pleading. State ex inf. Barrett v. Huffman, 248 S.W. 985; State ex rel. Major v. Mo. Pac. Ry. Co., 240 Mo. 35. (6) In the state of the pleadings, respondent is guilty of usurpation of privileges and franchises not granted to it, and of nonuser of a number of privileges and franchises granted to it in its charter. Either misuser or nonuser of such privileges and franchises is sufficient to justify judgment of ouster. State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34.

Jos. C. McAtee and Philip A. Foley for respondent.

(1) No violation of the law is shown in the information, for the statute does not expressly or impliedly condemn dog racing or the making of books or selling of pools thereon. Sec. 3536, R.S. 1919. (2) Whatever may be the correct definition of the terms "book-making" and "pool-selling," whenever either is used, it is, of course, understood to have reference to horse-racing of some character. State ex inf. v. Delmar Jockey Club, 200 Mo. 56; State v. Cummings, 248 Mo. 509. (3) The term or word "beast," as used in the statute, will not be construed to include dogs. 1 Bouvier's Law Dict.; Sentell v. New Orleans, 166 U.S. 698; 7 C.J. 1019. (4) A criminal offense should not be created by an uncertain and doubtful construction of a statute; if there be any doubt in the case a penal statute is to be construed so as not to multiply felonies unless the construction be supported by express words or by a lawful implication. United States v. Gideon, 1 Minn. 292-296. (5) For the purpose of removing ambiguities in the language of a statute it must be read with reference to all the facts and circumstances connected with its enactment, such as the history of the times, the state of the existing law and evils to be remedied by the new act, circumstances existing at the time of its enactment and general facts of common knowledge, 36 Cyc. 1136, 1137; Grimes v. Reynolds, 184 Mo. 680. (6) Acts of nonuser, to warrant a forfeiture, must have been willful and repeated and for a great length of time. 14a C.J. 1105.

WHITE, J.

The Attorney-General filed in this court an information in the nature of a quo warranto, seeking to oust the respondent from the exercise of its franchise and corporate privileges and to declare the same forfeited, because of the violation of Section 3536, Revised Statutes 1919, and because of nonuser and misuser of its franchise. To the information filed by the Attorney-General the respondent filed a demurrer, upon which the case is submitted for our consideration.

The information sets out that the respondent was incorporated February 24, 1927, with a capital stock of $125,000, of which $75,000 was paid in cash, and $50,000 paid in property; that the articles of association stated the purpose of the incorporation was:

"`To own, hold, rent, lease, manage, encumber, improve, exchange, buy and sell real property: to build, erect, construct and alter amusement resorts, halls and other buildings and structures thereon, and to construct roads, drives and walks on said property. To carry on the business of amusement proprietors and promoters for public entertainment: to promote and conduct boxing, wrestling and athletic contests and exhibitions of every kind and description and to license others to conduct and present the same on the premises of this corporation. To establish and maintain suitable grounds and a track for whippet racing, in the County of St. Louis, with necessary buildings, erections and improvements, and to conduct on said grounds and track whippet racing, exhibitions and contests of speed and races of every kind and description, for premiums, purses and other awards made up from fees or otherwise, and to charge the public for admission thereto and to said grounds and track, and to let such rights and privileges to others. To conduct restaurants, cafes and other stands for the sales of food and other refreshments to persons on said premises, and to let the privilege of conducting the same to others, and to do and perform all other acts necessary for fully accomplishing the purposes hereinbefore specifically enumerated. To do all things that may be properly done incidental to the foregoing purposes and to have all the rights and privileges in this State which accrue to manufacturing and business corporations under the laws of the State of Missouri.'"

The information, filed in October, 1927, avers that the respondent has never conducted any amusement parks other than a race track for dogs; that from the 24th day of February, up to the time of filing the information, respondent had conducted and was conducting the business of book-making, pool-selling, registration of bets, acceptance of bets; that respondent has occupied a certain shed known as a betting ring or shed, and has continuously recorded and registered bets and wagers upon contests of speed or endurance of dogs which took place upon its race track, and had knowingly permitted its betting ring to be used for the purpose of registering and recording bets upon such contests and, for each contest between dogs, persons who had registered bets thereon appeared at another shed or building on respondent's ground and there received from respondent sums of money paid to them as result of the bets so made and registered; all of which were done in violation of the statutes of Missouri.

The demurrer, under several different paragraphs, recites in substance the statements of the information, and says that the acts stated are not unlawful, because there is no averment that the selling of pools and the registration of bets was on horse races or any trial, skill, speed or power of endurance of man or beast, as contemplated by Sections 3535 and 3536, Revised Statutes 1919.

The demurrer further says that the allegations in relation to the failure to conduct any amusement except the racing of dogs is insufficient, because the respondent was incorporated February 24, 1927, and it had not failed to conduct other amusements for a sufficient time to constitute a non-user of its franchise.

I. It is not contended that the information does not sufficiently set forth a violation of...